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TMI Blog2003 (10) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... ni, ld. Advocate appeared on behalf of first appellant and Shri A. Chopra, JDR appeared on behalf of the Revenue. Nobody appears for the second applicant. 3. We have taken note of the Tribunal's decision in the case of M/s. Kumar Cotton Mills Pvt. Ltd. v. Commissioner of Central Excise, Ahmedabad-I reported in 2002 (146) E.L.T. 438 (Tri. - Mumbai), wherein it was held that the Tribunal has the power to extend the Stay beyond the period of 180 days. We also take note of the Larger Bench decision of the Tribunal in the case of M/s. Himalaya International Ltd. v. C.C.E., Chandigarh - 2003 (56) RLT 610 (CEGAT - LB) wherein after hearing both sides, the interim Stay was extended till the disposal of the appeal. 4. However, ld. JDR ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, thus rendering the orders passed under Section 35F as nugatory. Now when it is a settled law that Tribunal, in exercise of its inherent powers can grant stay of recovery, the question that arises is, whether such inherent powers can be exercised only for a period of 180 days and not thereafter? 7. The Tribunal in the case of M/s. Themis Pharmaceuticals has taken note of the provisions of Section (2A) of Section 35C of the Central Excise Act introduced with effect from 11-5-2002 and has concluded that there is a positive restraint on the continuation of stay beyond 180 days. For better appreciation, we reproduce the said proviso - "......further that if such appeal is not disposed of within the period specified in the first prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly disposed off within a period of 180 days. The difficulty is only being faced by the applicants at Mumbai at present. This is likely to be brought under control, on account of the recent increase in number of Benches. In any case, we are of the view that the applicants of Bombay should not suffer on account of pressure due to pendency at Mumbai. It is well said that the common man should not suffer on account of failure of Government machinery. As such we are of the view that since the above interpretation would result in prejudice to the applicants before Mumbai Bench vis-a-vis the applicants at other places, Tribunal should exercise its inherent powers to grant extension of stay beyond 180 days. 10. We also take note of the earli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory fault? We have already observed in the preceding paragraph that such difficulties being faced by the Tribunal should not result, in any manner, in a situation resulting in injustice to the appellants. 13. We also note that the Tribunal in the latter case has held that the extension beyond 180 days would make the said provisions of Section 35C(2A) nugatory and frustrate its clear mandate. However, we are of the view that contrary would be equally true inasmuch as what would be the result of such denial. The department would be at liberty to recover the amount which the Tribunal might have already considered as not recoverable and on that ground had dispensed the pre-deposit of the impugned amounts. If stay is not extended and the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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